Comparative Guides

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4. Results: Answers
International Arbitration
Grounds for challenging an award
What are the grounds on which an award can be challenged, appealed or otherwise set aside in your jurisdiction?

Answer ... Under Swiss law, an arbitral award is, in principle, deemed final from notification and thus does not have suspensive effect. However, in practice, parties filing an appeal are nevertheless explicitly asked not to initiate enforcement proceedings if the appeal includes a motion for the grant of suspensive effect. In such case this motion will be reviewed and decided by the appeals court first, before it turns to the merits of the appeal as such.

In both international and domestic arbitration, a motion to set aside a (final or partial) arbitral award must be filed with the Swiss Federal Tribunal (Article 191 of the Private International Law Act (PILA) and Article 389, paragraph 1 of the Swiss Code of Civil Procedure (CPC)), the country’s highest court. It is only in domestic arbitration that the parties have the option to agree that the arbitral award may initially be appealed to the cantonal high court at the seat of arbitration (Article 390, paragraph 1 of the CPC).

Both the PILA and the CPC provide very limited grounds to challenge an award. A motion to set aside an international award is permissible only on the following grounds (Article 190, paragraph 2 of the PILA):

  • irregular constitution of the arbitral tribunal (or improper appointment of a sole arbitrator);
  • an incorrect decision on jurisdiction;
  • a decision that goes beyond the claims made by the parties or does not answer all claims raised (infra or ultra petita);
  • violation of the principle of equal treatment of the parties or their right to be heard; and
  • violation of (procedural or substantive) principles of public policy.

Pursuant to Article 393 of the CPC, a party to a domestic arbitration proceeding may appeal the award on two additional grounds:

  • The arbitral award is arbitrary in its result because it is based on findings that are obviously contrary to the facts as stated in the case file or because it constitutes an obvious violation of law or equity; or
  • The costs and compensation fixed by the arbitral tribunal are obviously excessive.

The Swiss Federal Tribunal may be expected to render its decision within six to eight months of the appeal being lodged. However, the chance of success is remote: appeals on all available grounds other than jurisdiction are upheld in only around 7% of cases, while appeals on grounds of lack of jurisdiction are upheld in only around 10% of cases.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
Are there are any time limits and/or other requirements to bring a challenge?

Answer ... According to the Federal Tribunal Act, a motion to set aside an award rendered by an international arbitral tribunal with its seat in Switzerland must be filed with the Swiss Federal Tribunal within 30 days of notification of the award. The same timeframe applies to appeal an award rendered by a domestic arbitral tribunal with its seat in Switzerland before the cantonal court (such procedure being governed by the CPC).

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
Are parties permitted to exclude any rights of challenge or appeal?

Answer ... If all parties to the dispute have their domicile or place of business outside Switzerland, the parties may waive the right to appeal an arbitral award (Article 192, paragraph 1 of the PILA). The parties may waive such right either in the arbitration agreement or subsequently by written declaration. Given the implications, the parties are required to expressly waive such right. In particular, references to institutional rules providing for the finality of arbitral awards are not deemed sufficient for such purposes.

For more information about this answer please contact: Anja Vogt from Niederer Kraft Frey AG
International Arbitration